TERMS OF SERVICE

Last updated August 01, 2023

AGREEMENT TO OUR TERMS OF SERVICE

We are Axenic Limited (‘Company’, ‘we’, ‘us’, or ‘our’), a company registered in New Zealand at Level 7, 44 Victoria Street, Wellington City, Wellington 6011. We operate the Axenic C&A as a Service Portal (the ‘Service’), as well as any other related products and services that refer or link to these Terms of Service (the ‘Terms of Service’) (collectively, the ‘Services’).

Axenic’s C&A as a Service Portal empowers organisations by extracting the security gold that comes from the intersection of the traditional risk and assurance process and the business/service owner’s worldview of their accountabilities. This enables business owners to make informed business decisions to manage their cybersecurity risks. The portal also enables holistic enterprise cybersecurity risk management rather than in silos and provides means to measure the organisation’s cybersecurity maturity through risk management and continuous assurance. As a result, your organisation’s cybersecurity investments are traceable through to business risk reduction. At the heart of the portal is Axenic’s market leading intellectual property that has helped many New Zealand government agencies manage their cybersecurity risks since 2009. The portal standardises and automates mundane and expensive risk and assurance activities, increasing quality and providing enterprise views. Through its dashboards, risk owners can easily identify what risks are they managing, what they need to do about them, who will be doing those activities and when, how are the risk management activities progressing, and whether there is sufficient balance between risks and opportunities.

You can contact us by phone at +64 4 499 8012, email at support@axenic.co.nz, or by mail to Level 7, 44 Victoria Street, Wellington City, Wellington 6011, New Zealand.

​These Terms of Service constitute a legally binding agreement made between you, whether personally or on behalf of an entity (‘you’), and Axenic Limited, concerning your access to and use of the Services. You agree that by accessing the Services, you have read, understood, and agreed to be bound by all of these Terms of Service. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OF SERVICE, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SERVICES AND YOU MUST DISCONTINUE USE IMMEDIATELY.

​We will provide you with prior notice of any scheduled changes to these Terms of Service. The modified Terms of Service will become effective upon notifying you by email from support@axenic.co.nz. By continuing to use the Services after the effective date of any changes, you agree to be bound by the modified terms.

DEFINITION OF TERMS

    • Account Owner – the person within the Client primarily responsible for the use of the Service.
    • Client – an organisation that purchases the Services.
    • Data – Client information that entered into the Services as part of normal use of the Services.
    • End User – any person authorised to access the Service by the Account owner.
    • Leadership Team – one or more persons in the Client who has authority to negotiate on behalf of the Client.
    • Security Team – any persons designated as being responsible to the Account Owner for the secure use of the Service and having an elevated privilege level.
    • Standard User – any person not being the Account Owner or a member of the Security Team.

ACCESS TO THE SERVICE

We grant you the right to access and use the Services with the user roles available to you according to your subscription tier. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement. You acknowledge and agree that:

  • the Account Owner determines who is an End User with the Security Team user role access and can revoke or change a Security Team user access, or level of access, at any time and for any reason, in which case that person or entity will cease to be a Security Team user or shall have that different level of access, as the case may be.
  • the Account Owner determines who has a Standard User role access and can revoke or change the user’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be a Standard or shall have that different level of access, as the case may be.

You will assign permissions to the available roles in the Service through requesting user accounts via support@axenic.co.nz. These accounts will be created in bulk through completing a standard template during the onboarding process and additional accounts can be added at any time by contacting support@axenic.co.nz as the accounts are required. You are responsible for ensuring that the roles that you assign to the Service are correct.

Axenic reserves the right to periodically audit the total number of your users assigned to the Service and will notify you of users in excess of your subscription tier allowance. Additional user licenses are charged in bundles of 20.

SERVICE SUPPORT

If you contact our support team on support@axenic.co.nz, we will provide:

  • Acknowledgement within 6 business hours of your customer support request.
  • Resolution or update within 24 hours on normal support days (Monday to Friday) of your request.
  • On-going updates as needed.

Training on the use of the Services will be provided through in-person training, online training resources and remote training sessions based on the subscription tier you purchase and any supplemental support agreement we may agree with you for the Services.​

INTELLECTUAL PROPERTY RIGHTS

  1. Existing material – Ownership of intellectual property rights in all pre-existing materials, software, data, processes, methodology and information (“Existing Material”) supplied by each party under this Service shall remain the property of that party, regardless of its use in providing the Deliverable.
  2. Deliverable – Unless otherwise agreed in writing and to the extent that the Deliverable comprises or incorporates any:
      1. Existing Material, ownership of all intellectual property rights in Existing Material will remain with the owner of those intellectual property rights.
      2. Modifications or enhancements of Existing Material, ownership of all intellectual property rights in any modifications or enhancements in that Existing Material will vest in the owner of the intellectual property rights in that Existing Material.
      3. Where a third party owns the intellectual property rights in the Existing Material, any modifications and enhancements in that Existing Material will vest with the party that has the right to provide that Existing Material (subject to any alternative agreement between that party and the third party).
      4. The intellectual property rights in any software, methodologies, processes, assessments, or any other material that is used, created, modified, enhanced, or developed by Axenic during the completion of the Deliverable, will vest with Axenic.
  3. Usage licence – Unless otherwise agreed in writing, each party grants to the other of them a fully paid up, perpetual, non-exclusive, non-transferable licence to use such intellectual property rights of the other party (or provided by that party) for the purpose of satisfaction of their obligations under these Terms. You agree that the purpose of the licence granted to you extends to allowing Axenic meet its back-up, business continuity, record keeping, methodology development and archiving requirements and obligations. You permit Axenic to copy, modify, and adapt, for its ordinary business purposes which include future deliverables to you, your intellectual property in the Deliverable.
    Neither party will exercise the rights conferred by the licence granted under this clause 3. in a manner that breaches any other provision of these Terms.
    Any party that provides intellectual property that is owned by a third party for the purposes of completion of the Deliverable will ensure that it has the right to grant a licence in that intellectual property as required under this clause 3.
  4. Warranty – Unless otherwise agreed in writing, each party warrants that the use of the Existing Material provided by the other party under this SOW will not infringe the intellectual property rights of any person.
    You warrant that you will not, without the prior written consent of Axenic, disclose the Deliverable to any third party who provides similar services to Axenic.
  5. Indemnity – Each party fully indemnifies and defends the other party against all losses suffered or incurred by that party because of any third-party infringement of the intellectual property rights of that party resulting from a breach of any warranty in clause 3. (“IP Claim”).
    A party will promptly notify the other party in writing upon becoming aware of any IP Claim.
    A party will cooperate with the other party in defending or settling any IP Claim and will provide any assistance as is reasonably required to assist that party in dealing with that IP Claim.

USER REPRESENTATIONS

By using the Services, you represent and warrant that:

  • you have the legal capacity, and you agree to comply with these Terms of Service;
  • you are not a minor in the jurisdiction in which you reside;
  • you will not use the Services for any illegal or unauthorised purpose; and
  • your use of the Services will not violate any applicable law or regulation.

PURCHASES AND PAYMENT

We accept the following forms of payment:

– Bank Transfer

You will be invoiced for the Services monthly in advance, with any part months being billed pro rate.

You acknowledge that:

  • We may reasonably amend our Fees, upon the provision of written notice, provided no later than one (1) month prior to any Fee variation taking place.
  • We may impose new Fees for any functionality beyond that stated in the subscription features over time and where agreed to in writing by you.
  • Any written notice of a fee increase supersedes any previous pricing agreement.

GST will be added to all invoices and all payments shall be in NZD.

You agree to pay all charges at the prices then in effect for your purchases. If your order is subject to recurring charges, then you consent to our charging your payment method on a recurring basis without requiring your prior approval for each recurring charge, until such time as you cancel the applicable order. We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment.

ACCESS CONDITIONS

You may not access or use the Services for any purpose other than that for which we make the Services available. The Services may not be used in connection with any commercial endeavours except those that are specifically endorsed or approved by us.

As a user of the Services, you agree not to:

  • Circumvent, disable, or otherwise interfere with security-related features of the Services, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Services.
  • Disparage, tarnish, or otherwise harm, in our opinion, us and/or the Services. Use any information obtained from the Services in order to harass, abuse, or harm another person.
  • Make improper use of our support services.
  • Use the Services in a manner inconsistent with any applicable laws or regulations.
  • Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material that interferes with any party’s uninterrupted use and enjoyment of the Service or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Services.
  • Delete the copyright or other proprietary rights notice from any Content.
  • Attempt to impersonate another user or person or use the username of another user.
  • Interfere with, disrupt, or create an undue burden on the Service or the networks or services connected to the Service.
  • Attempt to bypass any measures of the Service designed to prevent or restrict access to the Service, or any portion of the Service.
  • Copy or adapt the Services’ software.
  • Except as permitted by applicable law, decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Service.
  • Use the Service as part of any effort to compete with us or otherwise use the Service and/or the Content for any revenue-generating endeavour or commercial enterprise.

CONTRIBUTION LICENCE

You agree that we may access, store, process, and use any information that you provide for the sole purpose of providing the Service to you.

By submitting suggestions or other feedback regarding the Service, you agree that we can use and share such feedback for any purpose without compensation to you.

SERVICES MANAGEMENT

We reserve the right, but not the obligation, to: (1) monitor the Service for violations of these Terms of Service; (2) take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms of Service, including without limitation, reporting such user to law enforcement authorities; and (3) otherwise manage the Service in a manner designed to protect our rights and property and to facilitate the proper functioning of the Service.

PRIVACY AND SECURITY

We care about data privacy and security. Please review our Privacy Policy – Axenic. By using the Services, you agree to be bound by our Privacy Policy, which is incorporated into these Terms of Service. Please be advised the Services are hosted in Australia. If you access the Services from any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in Australia, then through your continued use of the Services you expressly consent to have your data transferred to and processed in Australia.

We will use best endeavours to ensure the security of your Data held on the Service. Both parties agree that, for the purposes of this clause, best endeavours means applying and maintaining standards and procedures consistent with good industry practice to:

  • prevent unauthorised physical access to any servers on which your Data is processed or stored;
  • monitor and detect unauthorised system access or intrusion;
  • ensure that all data communications are HTTPS-compliant;
  • enable full data recovery in the event of an unexpected loss or corruption of your Data;
  • regularly perform backups of your Data and securely store those backups;
  • securely destroy all copies of your Data in the Services at the end of the agreement (subject to any constraints or limits imposed by our backup procedures)

You however acknowledge that no information which is available on the internet is completely secure and, provided that we have complied with our obligations under this clause, agree that Axenic will not be liable for loss or damage which occurs as a result of a third-party breaching or overcoming Axenic’s best endeavours.

In the event of a security incident that involves your Data, Axenic will notify you within 24 hours after our knowledge and confirmation of the security incident, and follow the Axenic Information Security Incident Management Process (available on request) to triage and remediate the security incident.

TERM AND EXTENSIONS

The term of this agreement commences on the date of your first subscription invoice (Initial Term) and continues for the subsequent 12 months unless terminated prior. These Terms of Service shall remain in full force and effect while you use the Services.

This Agreement will automatically be renewed and extended for a further term of 12 months (“Renewal Term”) provided that –

  • We have provided you with a reminder ‘end of contract’ via an email notice to the nominated customer and account contact addresses at least 20 working days prior to the end of the initial or any Renewal Term. The ‘end of contract’ email will propose new terms for the contract rollover.
  • You have not provided notice in writing to us of your intention to not renew this Agreement at least 20 working days prior to the expiry of the Initial or Renewal Term.
  • We have not formally provided a replacement renewal agreement containing updated terms to you for review prior to the end of the existing term.

TERMINATION

All purchases are non-refundable. You can cancel your subscription at any time by contacting us using the contact information provided below. Your cancellation will take effect 20 working days following your termination notification.

If you are unsatisfied with our Services, please email us at support@axenic.co.nz or call us at +64 4 499 8012.

Termination by you

You may terminate this Agreement in whole or in part if:

  • Axenic commits a material breach of this Agreement which is capable of being remedied and does not remedy that breach within 30 days after receiving written notice of the breach from you; or
  • Axenic commits a material breach of this Agreement which is not capable of being remedied; or
  • Axenic becomes Insolvent.
  • You can opt to terminate the agreement early by requesting termination of the Service by providing 20 working days’ notice.

Termination by Axenic

Axenic may terminate this Agreement in whole or in part if:

  • after making reasonable efforts to collect payment from you, payment remains outstanding for more than two months; or
  • You commit a material breach of this Agreement which is capable of being remedied and do not remedy that breach within 30 days after receiving written notice of the breach from Axenic; or
  • You commit a material breach of this Agreement which is not capable of being remedied; or
  • You become Insolvent; or
  • You infringe Axenic’s Intellectual Property Rights.

​On termination and on request by you, Axenic will export a current snapshot of requested enterprise security controls and system-based C&A artefacts in PDF and/or CSV format. The export will be undertaken by Axenic and will include key C&A artefacts of each system having undergone C&A leveraging the Services. At you request, Axenic will also delete all of your Data within the Services.

Any additional offboarding effort beyond standard export will be quoted as a chargeable engagement.

MODIFICATIONS AND INTERRUPTIONS

We reserve the right to change, modify, or remove features of the Service at any time or for any reason at our sole discretion.

Whilst we intend that the Service should be available 24 hours a day, seven days a week, it is possible that on occasions the Service may be unavailable to permit maintenance or other development activity to take place.

In the event of scheduled downtime, Axenic will provide you with at least 72 hours’ notice in advance of the required downtime and will endeavour to carry out maintenance windows outside normal business hours.

Force Majeure: We are not responsible for the Service being unavailable where the cause of the event is outside of our control. Such events include, but are not limited to, Acts of God, Terrorism, Earthquake, Flood, Internet Outage, Power Failure, or any other Force Majeure event.

If for any reason we have to interrupt the Service for longer periods than we would normally expect, we will use reasonable endeavours to publish in advance details of such activity to the Account Owner.

GOVERNING LAW

These Terms of Service shall be governed by and defined following the laws of New Zealand. Axenic Limited and yourself irrevocably consent that the courts of New Zealand shall have exclusive jurisdiction to resolve any dispute which may arise in connection with these Terms of Service.

DISPUTE RESOLUTION

The parties undertake to use all reasonable efforts in good faith to resolve any dispute which arises between them in connection with this Agreement.

A party may give the other party a notice of dispute in connection with this Agreement.

Any dispute shall be referred:

  • initially to your representative and Axenic’s representative, who will endeavour to resolve the dispute within five (5) Business Days of the giving of the notice; and
  • if your representative and Axenic’s representative do not resolve the dispute within that time, a member of your Leadership Team and a director of Axenic will endeavour to resolve the dispute within a further five (5) Business Days of such or other period as is agreed by the parties.
  • If after a period of twenty (20) Business Days after delivery of a dispute notice, the parties have not been able to resolve or agree on a process to resolve (whether by mediation, arbitration, alternative dispute resolution or otherwise) a dispute, the dispute shall be referred to mediation. Either party may at any time terminate the mediation in relation to that dispute.

A party may not commence legal proceedings (except proceedings seeking injunction relief) in respect of a dispute unless:

  • the dispute has first been referred for resolution in accordance with the dispute resolution procedure; and
  • a notice terminating any mediation commenced has been issued by either party.

If in the course of the dispute resolution procedure, the parties agree to refer a dispute for resolution by an agreed process, neither party will oppose any application for a stay of any legal proceedings in respect of that dispute pending the completion of that agreed process.

Until a dispute is resolved, whether by agreement between the parties or by a court order, the parties are obliged to continue to perform their obligations under this Agreement.

CORRECTIONS

There may be information on the Services that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Services at any time, without prior notice.

DISCLAIMER

The services are provided on an as-is and as-available basis. You agree that your use of the services will be at your sole risk. To the fullest extent permitted by law, we disclaim all warranties, express or implied, in connection with the services and your use thereof, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, and non- infringement. We make no warranties or representations about the accuracy or completeness of the services’ content or the content of any websites or mobile applications linked to the services and we will assume no liability or responsibility for:

  • any errors, mistakes, or inaccuracies of content and materials,
  • personal injury or property damage, of any nature whatsoever, resulting from your access to and use of the services,
  • any unauthorised access to or use of our secure servers and/or any and all personal information and/or financial information stored therein,
  • any interruption or cessation of transmission to or from the services,
  • any bugs, viruses, trojan horses, or the like which may be transmitted to or through the services by any third party, and/or
  • any errors or omissions in any content and materials or for any loss or damage of any kind incurred as a result of the use of any content posted, transmitted, or otherwise made available via the services.

LIMITATIONS OF LIABILITY

In no event will we or our directors, employees, or agents be liable to you or any third party for any direct, indirect, consequential, exemplary, incidental, special, or punitive damages, including lost profit, lost revenue, loss of data, or other damages arising from your use of the services, even if we have been advised of the possibility of such damages. Notwithstanding anything to the contrary contained herein, our liability to you for any cause whatsoever and regardless of the form of the action, will at all times be limited to the amount paid, if any, by you to us during the six (6) month period prior to any cause of action arising.

INDEMNIFICATION

You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of:

  • use of the Services;
  • breach of these Terms of Service;
  • any breach of your representations and warranties set forth in these Terms of Service;
  • your violation of the rights of a third party, including but not limited to intellectual property rights; or
  • any overt harmful act toward any other user of the Services with whom you connected via the Services.

Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defence and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defence of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.

ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES

Visiting the Services, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Services, satisfy any legal requirement that such communication be in writing. You hereby agree to the use of electronic signatures, contracts, orders, and other records, and to electronic delivery of notices, policies, and records of transactions initiated or completed by us or via the Services. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.

MISCELLANEOUS

These Terms of Service and any policies or operating rules posted by us on the Services or in respect to the Services constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Terms of Service shall not operate as a waiver of such right or provision. These Terms of Service operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of these Terms of Service is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Service and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms of Service or use of the Services.

CONTACT US

In order to resolve a complaint regarding the Services or to receive further information regarding use of the Services, please contact us at:

Axenic Limited

Level 7, 44 Victoria Street

Wellington City, Wellington 6011

New Zealand

Phone: +64 4 499 8012

support@axenic.co.nz